Terms of Service and Privacy Policy

Last Updated August 21, 2018

USE

Welcome to TravelMyHeart™. We (“TravelMyHeart Inc.”) hope you find it useful. By accessing or otherwise interacting with our servers, networks, services, websites, mobile applications, desktop applications, tablet applications, embeddable widgets, downloadable software, social media sites, blogs, marketing communications in any form or medium (e.g. email messages we send to you, text messages we send to you, application notifications we send to you, etc.), any associated content/postings and services, whether on-line or off-line, and/or any successor or replacement thereto, that we own, control, operate or manage (together, “TMH”), you agree to these Terms of Service and Privacy Policy (“Terms”).

To access or use TMH, you must be 18 years or older and have the requisite power and authority to enter into these Terms. If you are using TMH on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative with the authority to bind such organization to the Terms, and agree to be bound by the Terms on behalf of such organization.

You may not access or use TMH if you are a competitor of ours, or if we have terminated you from TMH and closed your account.

We grant you permission to use TMH subject to the restrictions in these Terms. Your use of TMH is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.

We may modify the Terms at any time in our sole discretion. You are responsible for periodically checking for changes and are bound by them if you continue to use TMH. You understand and agree that your continued access to or use of TMH after the effective date of modifications to the Terms indicates your acceptance of the modifications.

TMH may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.

REGISTRATION

You must create an account and provide certain information about yourself in order to use some of the features that are offered through TMH. You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account, whether or not you have authorized such activities or actions. You agree to notify us immediately of any unauthorized use of your account.

You must provide true, accurate, current, and complete information about yourself as requested on any form you complete as part of the process of registering for TMH and/or setting up your account. If any information provided by you is untrue, inaccurate, not current, deceptive, misleading, or incomplete, we reserve the right to terminate your account and refuse any and all current or future use of TMH. You are responsible for keeping your account information current and accurate; we will have no liability for failure to deliver notices that result from inaccurate account information.

CONTENT

All information (e.g. photographs, descriptions, tags, data, text, software, music, videos, graphics, animation, messages, comments, ratings, recommendations, reviews, downloads, etc.) or other materials (“Content”) submitted by you to TMH are your sole responsibility. This means that you, and not TravelMyHeart Inc., are entirely responsible for the Content that you upload, post, transmit or otherwise make available through TMH.

We may use your Content in a number of different ways, including using, copying, publicly performing and displaying, reproducing, reformatting, modifying, promoting, marketing, distributing, translating, removing, analyzing, licensing, commercializing, creating derivative works from, incorporating into advertisements, blogs, social media posts, print media, desktop or mobile applications and other works; and allowing others to do the same in connection with their own websites and media platforms (“Other Media”).

You represent and warrant that: (a) the Content will not infringe, violate or misappropriate any Intellectual Property Rights, copyright rights, trademark rights, rights of privacy, rights of publicity, or any other rights of any third party; (b) you have all requisite ownership and licenses to perform your obligations under these Terms; (c) you will maintain and comply with the respective published privacy policy(s) and such privacy policy(s) will contain provisions no less encompassing than as generally recognized in the internet industry and be in accordance with all applicable laws; (d) the Content will not contain any material that (i) is illegal or fraudulent, (ii) would encourage, solicit, glorify or provide instructions for any criminal or civil offense; (iii) is obscene, pornographic, indecent or sexually explicit, depicts graphic, excessive or gratuitous violence or is derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive or hateful; (e) none of the Content will contain any viruses, worms, or other code that may damage, interrupt or interfere with TMH, TravelMyHeart’s software, data or hardware; (f) the Content shall not include any personally identifiable information of any individual without such individual’s consent; and (g) the Content will be accurate and complete.

You irrevocably grant (1) us a world-wide, perpetual, non-exclusive, royalty-free, unlimited, assignable, sublicensable, transferable right and license to use your Content for any purpose; (2) irrevocably grant Other Media the right and license to reproduce, publicly display, perform and distribute to their users your Content, provided that TMH shall prohibit Other Media by contract from modifying any of such Content and (3) grant users of TMH and users of Other Media, the right and license to access and download your Content.

TravelMyHeart Inc. may suggest modifications to your Content or may write parts of, or all of your Content. TravelMyHeart Inc. will seek your consent of this derivative work via electronic email. If you consent to this derivative work via electronic email, TravelMyHeart Inc. will post it under this Terms.

You also acknowledge and agree that TravelMyHeart Inc. shall own all right, title and interest in and to any derivative works of the Content created by or on behalf of TravelMyHeart Inc., whether prior to or after the Effective Date as it applies to your use of TMH, and you hereby assign to TravelMyHeart Inc. any and all right, title, or interest that you may have to such derivative works.

The Content of TMH also includes Content created by TMH, copyrighted materials, trademarks, trade secrets, and other proprietary information, which may include, without limitation, personally identifiable information of TMH users, text, software, visual design, user experience design, photos, videos, graphics, animation, music and sound. All Content comprising TMH and subsets thereof are also protected by copyright as collective works. TravelMyHeart Inc. owns a copyright in the selection, coordination, arrangement, and enhancement of such Content, as well as in the Content original to TravelMyHeart Inc.

The Content (including any that may have been created by users employed or contracted by TravelMyHeart Inc.) does not necessarily reflect the opinion of TravelMyHeart Inc. We reserve the right to remove, screen, edit, or reinstate the Content from time to time at our sole discretion for any reason or no reason, and without notice to you. We have no obligation to retain or provide you with copies of your Content, nor do we guarantee any confidentiality with respect to your Content.

This Section will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between you and TravelMyHeart Inc. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

This Section is binding and will survive any expiration or termination of these Terms.

OTHERS’ SERVICES

You may be informed of or receive access to third party services, resources, widgets, downloadable software, software applications, products, offers, promotions, advertisements, features, websites, blogs, social media accounts, downloadable content, Content, information and the like (“Others’ Services”), through Content, links, postings, articles, or other elements of TMH. For example, TMH may include information about tour providers, hotels, attractions, activities, and other online or offline products or services, which TMH itself does not own or control. You acknowledge and agree that we are not responsible for the availability, quality, or performance of Others’ Services, and we do not recommend or endorse and are not responsible or liable for any content, advertising, representations, opinions, advice, services, products, or other materials that you may receive through such Others’ Services. It is up to you to take precautions to ensure that whatever such Others’ Services you select or software or Content you download is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature.

The providers of Others’ Services are not agents or employees of TravelMyHeart Inc. TravelMyHeart Inc. is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any such provider of Others’ Services or from any personal injuries, death, property damage, or other damages or expenses resulting therefrom. Your relationship with providers of Others’ Services may be governed by separate terms and conditions as established by each provider of Others’ Services, and when you use, purchase, or receive any Others’ Services, even when you do so through TMH, your relationship is directly with the third party provider. It is your responsibility to understand and abide by all payment obligations, privacy policies, privacy settings, and other terms and conditions that apply to any Others’ Services you elect to use, purchase, or receive. You agree that we will have no liability for any claims, losses or damages arising out of or in connection with your use of any Others’ Services, even if we have referred you to the particular third party, and you will indemnify us and hold us harmless against any claims arising out of or relating to your use, purchase, or receipt of Others’ Services, your acts or omissions, or your breach of any terms or conditions applicable thereto.

You are solely responsible for your dealings with any provider of Others’ Services, as well as any Internet service provider, wireless carrier, telecommunications company, or other carrier or similar service provider in connection with your use of TMH, and for paying any fees or other amounts charged by any such provider(s) in connection with such use.

IF YOU HAVE A DISPUTE WITH A PROVIDER OF OTHERS’ SERVICES, YOU RELEASE US AND TRAVELMYHEART INC.’S OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, LICENSORS, SUBSIDIARIES, AGENTS, ADVISORS, JOINT VENTURES, DISTRIBUTORS, OTHER MEDIA, AND SUCCESSORS IN INTEREST (COLLECTIVELY, “TMH Entities”) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

This Section is binding and will survive any expiration or termination of these Terms.

PAYMENT

You authorize us to charge your account for TMH fees. You are responsible for paying any governmental taxes imposed on your purchases, including, but not limited to, sales, use or value-added taxes. To the extent TravelMyHeart Inc. is obligated to collect such taxes, the applicable tax will be added to your fees. Fees and applicable taxes are non-refundable, even for Content we remove, delay, omit, re-categorize, re-rank, or otherwise moderate.

YOU AGREE TO SUBMIT ANY DISPUTES REGARDING ANY CHARGE TO YOUR ACCOUNT IN WRITING TO TRAVELMYHEART INC. WITHIN THIRTY (30) DAYS OF SUCH CHARGE, OTHERWISE SUCH DISPUTE WILL BE WAIVED AND SUCH CHARGE WILL BE FINAL AND NOT SUBJECT TO CHALLENGE. YOU ALSO AGREE TO ATTEMPT IN GOOD FAITH TO RESOLVE ANY SUCH DISPUTE DIRECTLY WITH TRAVELMYHEART INC. PRIOR TO RESORTING TO ANY ALTERNATE REMEDY OR DISPUTE RESOLUTION MECHANISM, INCLUDING WITHOUT LIMITATION ISSUING A CHARGEBACK REQUEST TO YOUR PAYMENT PROVIDER.

In addition to goods or services from TravelMyHeart Inc., TMH may also include goods or services for purchase from third parties. The Section “Others’ Services” provides more information about these Others’ Services, and you acknowledge that you are solely responsible for reviewing all applicable terms related to Others’ Services. Others’ Services may include travel and other products and services that may be non-refundable or require additional fees to reschedule or change. Please make sure you understand the applicable terms before making any purchases.

This Section is binding and will survive any expiration or termination of these Terms.

CO-MARKETING

You agree that TravelMyHeart Inc. may propose marketing efforts such as seek a testimonial from you or your representatives, interview you or your representatives for articles or blog posts, write press releases, public relations campaigns, online or offline marketing campaigns, other marketing and promotional efforts, or use your names, logos, marks, trademarks, entity names and a description of the relationship, and to display any third party names, logos, marks, trademarks, and entity names used by you, (together “Co-Marketing”) on TMH, Other Media or third-party media in electronic email and seek your consent in electronic email. Upon your consent in electronic email, TravelMyHeart Inc. may use the Co-Marketing on TMH, Other Media or third-party media. When you request removal, TravelMyHeart Inc. shall use reasonable efforts to cease to use (e.g., TravelMyHeart Inc. could continue to use pre-printed materials). You represent and warrant that you have all rights and licenses required to grant TravelMyHeart Inc. the rights granted in this Section.

PRIVACY

This policy describes what information and/or data we collect, store, use and disclose.

Protecting your privacy:

  • TravelMyHeart Inc. does not disclose your personally identifiable information to third parties for the purpose of directly marketing their services to you.
  • We take precautions to prevent unauthorized access to or misuse of data about you.
  • We make good faith efforts to store data securely, but cannot and do not guarantee the security of the information we collect from you or that such information will not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards.
  • We collect, store and use data as needed for our business purposes (e.g. to analyze and develop our marketing strategy, to develop new products and services, to customize and target content including advertisements, etc.) and/or as required by law; and/or we may use third-party services to do the same (e.g. Google Analytics, email service, marketing automation service, etc.). Such third party services may use technologies such as web beacons, clear gifs, session cookies, persistent cookies, etc. We make good faith efforts to use third-party services which are known in the industry (e.g. Google, Zoho, etc.).
  • You may update certain data about you (e.g. company name change, company representative name change, email address, etc.) by contacting us via email.
  • We suggest that you review the privacy policies and/or settings of Others Services (e.g. links you may click on which take you to tour operators or such websites, or guidebooks you may download from destination marketing organizations websites) to determine your use of such service.

Data we collect, store and use to provide/improve our services and/or combat fraud/abuse:

  • We collect, store and use data and/or Content you post and/or submit/provide on TMH or send via TMH, and/or send us directly via any communication channel, including but not limited to personally identifiable information (e.g. your first name, last name, phone number, email address, postal address, your Content, etc.).
  • We may collect, store and use data (e.g. IP address, HTTP header information, geo-location, information about your hardware and software, device screen size, links, images, or other materials you click, information that may enable us to know your location, web pages or sites that you visited just before or just after TMH, the pages you view on TMH, the searches you run on TMH, the dates and times you access TMH, etc.) and/or other information about how you use TMH; and/or we may also use third party services for the same. (e.g. Google Analytics, email service, marketing automation service, etc.)
  • We collect, store and use data collected from your use of the communications messages we send to you (e.g. whether you opened an email message we send to you, links you clicked on in the email message, photo and/or video views in email, time you spent reviewing the email, etc.) via any communications media (e.g. email, text, application notifications, etc.); and/or we may also use third party services for the same (e.g. Google Analytics, email service, marketing automation service, etc.).

Circumstances in which we may disclose your data, including personally identifiable information:

  • We may disclose your data to comply with legal process or other government inquiry (e.g. subpoenas, search warrants, court orders, statute, judicial proceeding, etc.) or other legal process.
  • We may disclose your data to take action regarding suspected illegal activities.
  • We may disclose your data to enforce or apply our Terms and Privacy Section.
  • We may disclose your data to take action relating to user complaints.
  • We may disclose your data to third parties for their use in helping us perform our internal business functions. These are things like performing maintenance, security, data analyses, email transmissions, data hosting on our behalf, etc. We require these third parties to maintain your data consistent with their legal obligations.
  • We may disclose and otherwise transfer your personally identifiable information to an acquirer, or to a successor or assignee, as part of any merger, acquisition, debt financing, sale of all or a portion of our assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership, in which your personally identifiable information is transferred to one or more third parties as one of our business assets.
  • We may disclose your data to protect our rights, reputation, property, or safety, or that of users of TMH, TMH Entities or the general public.
  • We may disclose summary/aggregated data or other types of non-personally identifiable information or anonymized information, to third parties for various purposes. For example, we may disclose non-personally identifiable information to interested third parties to assist them in understanding the usage, viewing, and demographic patterns for TMH, advertisements, promotions, etc.

Some third party services used by TMH for our business purposes (e.g. Google Analytics, email service, marketing automation service, etc.) may place or recognize cookies, use web beacons (sometimes called “clear gifs”) and other technology to track certain information about your use of TMH and/or other websites. For example, a third party email service may place or recognize a unique cookie on your browser in order to collect certain information about your use of websites. In many cases and for example, this information could be used to show you advertisements based on your interests on other websites. We do not have access to, nor control over, such third party services’ use of cookies or other tracking technologies or how they may be used.

Some of the Others’ Services accessible through TMH are delivered or served by third-party companies that may place or recognize cookies, use web beacons (sometimes called “clear gifs”) and other technology to track certain information about your use of TMH, their websites or other websites. For example, some third-party tour operator may place or recognize a unique cookie on your browser in order to collect certain information about your use of their website. In many cases and for example, this information could be used to show you advertisements based on your interests on their website and/or other websites. We do not have access to, nor control over, Others’ Services’ use of cookies or other tracking technologies or how they may be used.

Account Termination – You can close your account by contacting us. In this case, we will disable your login. We may retain information about you for the purposes authorized under this Privacy Section unless prohibited by law. For example, we may retain information to prevent, investigate, or identify possible wrongdoing in connection with TMH or to comply with legal obligations. Please note that businesses cannot remove their business Content by closing their accounts.

You can opt-out of receiving certain communications (e.g. email, text, application notifications, etc.), but we reserve the right to continue to send you certain communications relating to TMH, such as service announcements and administrative messages, without offering you the opportunity to opt out of receiving them.

International Users – By accessing TMH or providing us data, you agree we may collect, store, use and disclose your data as described here or as communicated to you, transmit it outside your resident jurisdiction, and store it outside your resident jurisdiction. Each jurisdiction can have its own privacy and data-security laws, some of which may be less stringent as compared to those of your own jurisdiction.

By using TMH, you agree to this Privacy Section. We may modify this Privacy Section at any time in our sole discretion. You are responsible for periodically checking for changes and are bound by them if you continue to use TMH. You understand and agree that your continued access to or use of TMH after the effective date of modifications to this Privacy Section, indicates your acceptance of the modifications.

This Section is binding and will survive any expiration or termination of these Terms.

FEEDBACK

You may provide TravelMyHeart Inc. with ideas, suggestions, reports of failures, errors, or other malfunctions, along with any associated error messages, documents or proposals (“Feedback”). You agree that (i) your Feedback does not contain the confidential or proprietary information of third parties; (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback; (iii) we may have something similar to the Feedback already under consideration or in development; and (iv) you grant us a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, display, perform, reproduce, publish, disclose, sublicense, distribute, modify, prepare derivative works, commercialize, and/or otherwise exploit such Feedback without restriction.

This Section is binding and will survive any expiration or termination of these Terms.

TRAVELMYHEART INC. PROPERTY

Your rights with respect to TMH are limited to those rights expressly granted in these Terms. You acknowledge and agree that TravelMyHeart Inc. owns all right, title, and interest in and to TMH, including all Content comprising TMH, software, any data and/or information collected from users of TMH and/or Other Media, including, but not limited to, user personally identifiable information, user comments and feedback, Content, data, and any and all Intellectual Property Rights embodied therein, even if TravelMyHeart Inc. or its licensors incorporate these into subsequent versions of TMH. TMH is protected by copyright, trademark, trade secret, and other laws of both the United States and foreign countries.

This Section is binding and will survive any expiration or termination of these Terms.

RESTRICTIONS

You agree not to, and will not assist, encourage, or enable others to, either electronically (e.g. through robots, spiders, scripts, scrapers, crawlers, etc.) or manually:

  • Create a database or other archival collection in electronic or physical form by downloading and storing, transcribing, or otherwise utilizing any Content or data contained in TMH, excluding Content you create;
  • Reproduce, duplicate, copy, modify, make derivative works based upon, distribute, license, sell, trade, resell, transfer, publicly display, publicly perform, transmit, “frame,” commercialize, and/or otherwise use or exploit any portion of TMH, including without limitation any data or Content provided on and through TMH, excluding Content you create;
  • Circumvent or attempt to circumvent any access or use restrictions, data encryption, or content protection related to TMH;
  • Copy, modify or distribute the computer code used to generate web pages on TMH;
  • Decipher, decompile, disassemble or reverse engineer any of the software used to provide TMH;
  • Access, tamper with, or use non-public areas of TMH, our computer systems, or the technical delivery systems of our providers;
  • Attempt to gain unauthorized access to TMH, user accounts, computer systems or networks connected to TMH through hacking, password mining or any other means;
  • Probe, scan or test the vulnerability of any system or network or breach any security or authentication measures;
  • Access or search TMH with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by TMH or other generally available third party web browsers;
  • Send unsolicited email, bulk email, junk mail, “spam” or chain letters, or promotions or advertisements for products or services, including without limitation those which are designed to promote, directly or indirectly, a product or service with which you have a business relationship or other commercial connection;
  • In any way use TMH to send altered, deceptive or false source-identifying information;
  • Use TMH or any TMH Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, “Viruses”);
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending Viruses, overloading, flooding, spamming or mail-bombing TMH or any other portion of TMH;
  • Impersonate or misrepresent your affiliation with, or your lack of affiliation with, any person or entity;
  • Use TMH in violation of TravelMyHeart’s or any third party’s intellectual property or other proprietary or legal rights;
  • Use TMH in violation of any applicable law;
  • Provide Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (e.g. inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or
  • Upload, post, email, transmit or otherwise make available Content that infringes or misappropriates any patent, trademark, trade secret, copyright or other proprietary rights of any party.

The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing 30 days’ prior written notice to us, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.

This Section is binding and will survive any expiration or termination of these Terms.

CONFIDENTIALITY

“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or otherwise learned by Receiving Party concerning or related to TravelMyHeart Inc. or TMH or the Disclosing Party, whether before, on or after the Effective Date of this Terms as it applies to your use of TMH, which the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. The Receiving Party will, during the Effective Date of this Terms as it applies to your use of TMH and thereafter, maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. Confidential Information includes, but is not limited to, the components of business plans, financial plans, know-how, user data and information, customer information, strategies and other similar information. The Receiving Party will, during the Effective Date of this Terms as it applies to your use of TMH and thereafter, maintain in confidence the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted herein. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Terms through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, the Receiving Party provides to Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure. The Parties agree that damages would be an inadequate remedy in the event of a breach of this Section. Therefore, the Parties agree that a Party is entitled, in addition to any other rights and remedies otherwise available, to injunctive and other equitable relief in the event of a breach or threatened breach by the other Party of this Section.

This Section is binding and will survive any expiration or termination of these Terms.

TMH IS PROVIDED “AS-IS”

To the full extent permitted by law, TravelMyHeart Inc. and TMH Entities (1) make no promises, warranties, or representations as to TMH, including its quality, completeness, accuracy, reliability, availability, timeliness, propriety, safety or security; (2) provide TMH on an “AS IS,” “WITH ALL FAULTS,” and “AS AVAILABLE” basis and any risk of using TMH is assumed by you; (3) disclaim all warranties, express or implied, including as to accuracy, merchantability, fitness for a particular purpose, and non-infringement; (4) disclaim any liability or responsibility for acts, omissions, or conduct of you or any party in connection with TMH; and (5) disclaim any warranties whatsoever regarding any products, services, content, information or other material advertised, made available, or referred to you through TMH. We and TMH Entities are NOT liable for any direct, indirect, consequential, incidental, special, punitive, or other losses, including lost profits, revenues, data, computer systems, goodwill, etc., arising from or related to TMH, and in no event shall such liability exceed the amount you paid us in the twelve (12) months preceding such loss.

All advice or information, whether oral or written is provided “AS IS,” “WITH ALL FAULTS,” and “AS AVAILABLE” and no advice or information whether oral or written obtained from TMH or through TMH Entities, will create any warranty. Inclusion of information on TMH is for reference purposes only and does not constitute an endorsement of quality, reliability, or any other attribute of the subject of the information, the information itself, or the source of the information.

We and TMH Entities are not responsible for any decisions you make based upon TMH or any information or Content available through TMH or any third party you elect to purchase from, visit, rent, view or attend based on materials or Content available through TMH. We and TMH Entities assume no liability or responsibility for any errors or omissions in TMH or any information or content on or available through TMH, and make no commitment or warranty to correct any such errors or omissions or update or keep current the information or content contained in TMH. It is your responsibility to verify that this information or content is suitable for your purposes.

This Section is binding and will survive any expiration or termination of these Terms.

TERMINATION OF USE; MODIFICATION AND DISCONTINUATION OF TMH

You may terminate the Terms at any time by closing your account and discontinuing your use of TMH. Please review the Privacy Section for information about what we do with your account when terminated.

We may close your account, suspend your ability to use certain portions of TMH, and/or terminate your use of TMH altogether, for any or no reason or in connection with any general discontinuation of TMH and without notice or liability of any kind. We also reserve the right to modify TMH at any time without notice to you. Specific to this paragraph, our liability is limited to the amounts you have paid TMH for access to and use of TMH (including any content available on or through TMH) giving rise to such liability in the three (3) months prior to the claim.

This Section is binding and will survive any expiration or termination of these Terms.

LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TRAVELMYHEART INC., TMH ENTITIES  NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING TMH WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE TMH, (INCLUDING ANY CONTENT AVAILABLE ON OR THROUGH TMH AND TMH ENTITIES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TMH ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT TRAVELMYHEART INC. AND TMH ENTITIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. BEFORE UNDERTAKING TRAVEL OR OTHER ACTIVITIES BASED ON INFORMATION OR CONTENT PROVIDED THROUGH TMH AND TMH ENTITIES, YOU SHOULD INDEPENDENTLY VERIFY THE INFORMATION OR CONTENT MADE AVAILABLE THROUGH TMH AND TMH ENTITIES AND ENSURE THAT YOUR TRAVEL ACTIVITIES AND OTHER PLANS ARE APPROPRIATE FOR YOU. TRAVEL AND OTHER ACTIVITIES THAT ARE DESCRIBED ON TMH ARE INHERENTLY RISKY AND YOU OR YOUR COMPANIONS’ PROPERTY COULD BE STOLEN, DAMAGED OR DESTROYED, AND YOU OR YOUR COMPANIONS COULD DIE OR BE SERIOUSLY INJURED, AND WE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY IN ANY OF THESE EVENTS. WE AND TMH ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR YOUR USE OF TMH, OTHER MEDIA, ANY CONTENT UPLOADED ONTO OR DOWNLOADED FROM TMH OR FROM OTHER MEDIA.

YOU AGREE THAT THE AGGREGATE LIABILITY OF TRAVELMYHEART INC. AND TMH ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THE USE OF TMH IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO TMH FOR ACCESS TO AND USE OF TMH (INCLUDING ANY CONTENT AVAILABLE ON OR THROUGH TMH) GIVING RISE TO SUCH LIABILITY IN THE THREE (3) MONTHS PRIOR TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TRAVELMYHEART INC. AND YOU.

This Section is binding and will survive any expiration or termination of these Terms.

INDEMNITY

You agree that you will be personally responsible for your use of TMH, and you agree to defend, indemnify and hold harmless TravelMyHeart Inc. and TMH Entities from and against any and all claims, liabilities, damages, losses and expenses, including legal and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of TMH; (ii) your violation of the Terms or any representation, warranty, or agreements referenced herein; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (iv) any claim or allegation of a third party that TMH has referred to you, to the extent based on any actual or alleged act or omission on your part or behalf, or any other claim or allegation arising as a result of such referral; (v) any disputes or issues between you and any third party; and (vi) any products or services purchased or obtained by you in connection with TMH. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You agree not to settle any such matter without the prior written consent of TravelMyHeart Inc. TravelMyHeart Inc. will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

This Section is binding and will survive any expiration or termination of these Terms.

APPLICABLE LAWS AND DISPUTE RESOLUTION

We operate TMH from the State of California, and we make no representations that information and materials included in TMH are appropriate or available for use in other locations. Access to TMH from any territory where the content is illegal is prohibited.

California law will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and TravelMyHeart Inc. (a “Claim”), without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA, except we may seek preliminary or injunctive relief anywhere. You agree to indemnify and hold us and TMH Entities harmless from any Claims, losses, liability, or expenses (including attorneys’ fees and other such costs) that arise from a third party and relate to your use of TMH; and be liable and responsible for any Claims we may have against your officers, directors, employees, agents, affiliates, or any other party, directly or indirectly, paid, directed or controlled by you, or acting for your benefit.

Improperly Filed Claims – All claims you bring against TravelMyHeart Inc. must be resolved in accordance with this Section, and any claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, TravelMyHeart Inc. may recover reasonable attorneys’ fees and other costs, provided that TravelMyHeart Inc. has notified you via electronic email of the improperly filed claim, and you have failed to promptly withdraw the claim.

This Section is binding and will survive any expiration or termination of these Terms.

MISC.

Use of paragraph headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. Any failure on TravelMyHeart’s part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. These Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with TravelMyHeart’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. The English language version of the Terms controls over any translations.

This Section is binding and will survive any expiration or termination of these Terms.

CONTACT INFORMATION

TravelMyHeart Inc.

3765 Stoneglen North

Richmond, CA 94806

Contact@TravelMyHeart.org